Press Releases

London, UK -- The Electronic Frontier Foundation (EFF) provided written testimony on Saturday to the UK government committee evaluating the charter renewal for the British Broadcasting Corporation (BBC). The testimony supports the BBC's request to build the "Creative Archive," a groundbreaking project that would make the entire archive of BBC material available online.

The Creative Archive is among the most ambitious "open content" projects ever undertaken. When it is realized, the BBC's rich archive of material, going back to the earliest days of radio and television, will be placed online under a "Creative Commons" license that allows the British citizens who paid for the material through the TV tax to distribute and creatively reuse it.

"The BBC's public service mission created a media production culture for Britain. Today, that culture stands to explode into a 'Creative Nation' where ordinary Britons can reap new benefits from previously fallow resources. The BBC's Creative Archive is the purest and most exciting exercise of its remit to date, and it should be enshrined in its new charter," said Cory Doctorow, European Affairs Coordinator at EFF. "The building of the Creative Archive is a watershed moment in the history of the BBC and of the world. It has the power to strengthen cultural identity for the coming generation of Britons, to benefit UK cultural institutions, artists, and commercial broadcasters, and to lift the whole world to a new heights of creativity, freedom, and cooperation."

San Francisco, CA - The Ninth Circuit Court of Appeals has rejected the government's attempt to bar the press and the public from a trial where plaintiff John Gilmore is challenging the constitutionality of requiring airline passengers to show ID.

Last week, the government tried to sidetrack Gilmore's appeal to the Ninth Circuit by asking to have the case heard in secret and with motions filed "under seal," arguing that disclosing the security directive could be "detrimental to the security of transportation."

"This case is about the unconstitutionality of secret law as well as about forcing people to show ID," said EFF Senior Staff Attorney Lee Tien. "We're glad the court didn't buy into this administration's obsession with secrecy."

When Gilmore's case was dismissed by US District Judge Susan Illston in 2002, the government refused to show the challenged regulations to the district court -- or admit that the regulations even existed.

The proposed language targets companies who make "public dissemination" technologies, where those companies make money from, or attract users with, copyright infringement. The proposal is a break with the doctrine established by the Supreme Court in its famous "Betamax" ruling, which says that technology companies cannot be held liable for copyright infringement by their customers, so long as the technology in question is capable of substantial noninfringing uses. In its ruling in MGM v. Grokster, the Ninth Circuit Court of Appeals recently reaffirmed that the Betamax doctrine applies to peer-to-peer (P2P) file-sharing software. EFF represents one of the prevailing defendants in that case.

The Copyright Office proposal came in response to a request from the Senate Judiciary committee. The committee has also received proposals from a variety of technology industry groups and is expected to continue deliberating in the weeks ahead.

The Federal District Court in Philadelphia ruled today that a state law requiring Internet Service Providers (ISPs) to block access to websites that allegedly host child pornography violates the First Amendment. In order to comply with the law, ISPs had been forced to over-block websites that shared domain names or IP numbers with those identified by the state Attorney General as containing child porn.

"Although no one disputes that child pornography is and should be illegal to distribute, the Pennsylvania law threatened to cut off access to more than a million perfectly legitimate websites, in an ineffectual attempt to block alleged child pornography sites," said EFF Staff Attorney Kurt Opsahl. "The judge's decision correctly recognizes that the First Amendment does not tolerate such a burden on protected expression."

The Washington Post reports that the House Judiciary Committee has marked up and reported H.R. 4077, the Piracy Deterrence and Education Act (PDEA). The measure is now ready for a vote by the entire House of Representatives. The Senate has taken no action on any companion bill.

The PDEA would impose criminal penalties on those who share more than 1,000 infringing files on a peer-to-peer network. Recent surveys by Ruckus Network show that the average college student who uses P2P file-sharing software shares 1,100 files. The bill would also have the Department of Justice foot the bill for sending warning notices to 10,000 filesharers.

"Tens of millions of Americans continue to use P2P networks," said Fred von Lohmann, senior intellectual property attorney at EFF. "Turning college kids into criminals is not going to change that reality, any more than the 4,000 lawsuits against file-sharing music fans has. This is a business problem, not an FBI problem."

Boston, MA - The Electronic Frontier Foundation (EFF) today submitted a friend-of-the-court brief in a case that will have a profound effect on the privacy of Internet communications.

The brief argues that US v. Councilman, previously decided by a panel of First Circuit judges, should be reheard by the entire First Circuit Court of Appeals. In the earlier panel decision, the court ruled that it does not violate criminal wiretap laws when an email service provider monitors the content of users' incoming messages without their consent.

The defendant in the case, Bradford Councilman, is a bookseller who offered email service to his customers. Councilman configured the email processing software so that all incoming email sent from Amazon.com, a competitor, was secretly copied and sent to his personal email account before it arrived in the intended recipient's mailbox. The court ruled that this is legal. As the panel itself stated in the ruling, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."

Co-authored by Orin Kerr and Peter Swire, law professors specializing in Internet privacy issues, the amicus brief is co-signed by EFF, the Center for Democracy and Technology (CDT), the Electronic Privacy Information Center (EPIC), and the American Library Association (ALA). Amici argue that a rehearing is necessary because the Councilman decision disrupts the traditional understanding of Internet surveillance laws, raising significant constitutional questions under the Fourth Amendment.

"This court decision has repercussions far beyond a single criminal prosecution," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis fellow. "The panel decision effectively rewrites the field of Internet surveillance law in ways that Congress never intended. If private service providers like Councilman can avoid the Wiretap Act's criminal prohibition on interception by a technicality in the way the messages are transmitted, it follows that the government will also be able to monitor our communications without having to ask a judge for a wiretap order. If the decision is allowed to stand, it will eliminate the Wiretap Act as the primary curb against private and government snooping on the Internet."

Court Rules Copyright Law Cannot Be Used to Stifle Competition for Garage Door Openers

Washington, DC - A federal appeals court in Washington, DC, yesterday upheld a lower court ruling that allows the marketing of "universal" remote controls for garage door openers, an important decision that helps pave the way for competition and lower prices in the after-market and replacement parts arena.

"Competition in after-market and replacement parts, such as remote garage door controls, helps create lower prices and better products," said Kenneth DeGraff, a researcher for Consumers Union. "Allowing one company to control those markets and the prices they charge hurts consumers."

The Digital Millennium Copyright Act (DMCA) was passed in 1998 to stop mass copyright infringement on the Internet, but some companies have gone beyond this purpose and invoked its controversial "anti-circumvention" clause to stave off the competition. The Samuelson Law, Technology & Public Policy Clinic at Boalt Hall School of Law, UC Berkeley, and the Electronic Frontier Foundation (EFF) co-authored the Consumers Union brief to help stand up for consumer rights and the right to create new after-market technologies capable of interoperating with legitimately purchased products.

Jennifer M. Urban, the lead attorney on the case at the Samuelson Clinic, said, "The court recognized that copyright law grants rights to consumers as well as copyright holders and held that the DMCA did not wipe those rights away."

"Chamberlain's lawsuit sought to stifle competition by misusing the DMCA," said Deirdre K. Mulligan, Director of the Samuelson Clinic. "Congress warned of such abuses and we're pleased that the court rejected this view to avoid harming consumers."

"When consumers buy a garage door opener, they have the right to use whatever remote they want with it, even one from another company," said Jason Schultz, EFF Staff Attorney and a co-author of the brief. "In Chamberlain's view, it's their remote or no remote. Thanks to this decision, they've now been shown that the law views it differently."

Skylink won decisions in the lower court and at the International Trade Commission, but Chamberlain appealed, claiming that Skylink's remote control device circumvents access controls to a computer program in its garage door opener. The Samuelson Clinic filed briefs in both forums on behalf of Consumers Union, and a student intern presented Consumers Union's position to the lower court during oral arguments. In its decision, the Court of Appeals rejected Chamberlain's claims, further noting that if the court adopted Chamberlain's interpretation of the DMCA, it would threaten many legitimate uses of software within electronic and computer products -- something the law aims to protect.

"[Chamberlain's interpretation] would...allow any copyright owner, through a combination of contractual terms and technological measures, to repeal the fair use doctrine with respect to an individual copyrighted work -- or even selected copies of that copyrighted work," wrote the court. "Copyright law itself authorizes the public to make certain uses of copyrighted materials. Consumers who purchase a product containing a copy of embedded software have the inherent legal right to use that copy of the software. What the law authorizes, Chamberlain cannot revoke."

San Francisco - Music publisher Ludlow Music, Inc., has officially backed down on its threats against web animation studio JibJab Media Inc. over the widely circulated "This Land" animated parody lampooning President Bush and Senator Kerry. JibJab had responded to Ludlow's threats by engaging the Electronic Frontier Foundation (EFF) to file suit on its behalf in San Francisco on July 29, 2004, seeking judicial confirmation that JibJab's work was a protected "fair use" and did not infringe Ludlow's copyrights.

During the course of investigating the case, EFF learned that "This Land is Your Land," the classic Woody Guthrie song, is part of the public domain and has been for several decades.

EFF's investigation revealed that "This Land is Your Land" appears to have been in the public domain since the early 1970s. Woody Guthrie wrote his classic American song in 1940, when the copyright laws granted a copyright term of 28 years, renewable once for an additional 28. According to EFF, the initial copyright term was triggered when Guthrie sold his first versions of the song as sheet music in 1945. The copyright on the song then ran out when Ludlow failed to renew its registration in 1973. Ludlow believes its copyright -- initially filed in 1956 and renewed in 1984 -- remains valid and disputes EFF's claims.

"We believe that Guthrie's classic tune, 'This Land Is Your Land,' belongs to all of us now, just like Amazing Grace and Beethoven's symphonies" said Fred von Lohmann, senior staff attorney with EFF. "The idea of copyright law is that, after a time, every work comes back into the hands of the public, where it can be reused, recycled, made part of new creativity without having to pay a fee or call in the lawyers. That's a great thing, the real genius of copyright."

JibJab dismissed its suit against Ludlow today. As part of the settlement of the case, JibJab will remain free to continue distributing the "This Land" animation without further interference from Ludlow.

California - US citizens may no longer have the right to travel without being searched. So says the District Court for the Northern District of California, which recently dismissed a case that questioned whether it is constitutional for airport security agents to demand identification papers from travelers. But the case, Gilmore v. Ashcroft, isn't going away. On Monday, counsel for plaintiff John Gilmore filed a brief with the Ninth Circuit, demanding that the court reverse this ruling and guarantee travelers the right to travel by air without the government requiring them to show identification papers.

On Thursday the Electronic Frontier Foundation filed a friend-of-the-court brief on behalf of the plaintiff, arguing that compulsory ID checks at airports violate the Fourth Amendment. The law permits passengers to be searched only for weapons and explosives, and does not permit generalized searches as a condition for boarding commercial aircraft. Thus, forcing travelers to produce identification constitutes an illegal search and seizure. The government has failed to show a compelling reason why identity checks are necessary to prevent people from carrying weapons or explosives onto planes, or even any legal authority for demanding that passengers show identity papers.

"We are all concerned with keeping aviation safe and secure, but the Fourth Amendment does not allow screening for dangerous items to expand into a coercive demand for official identity papers," said EFF Staff Attorney Kurt Opsahl.

California - Today the Ninth Circuit Court of Appeals made a crucial decision (PDF) in support of technology innovators by declaring that distributors of the peer-to-peer software Grokster and Morpheus cannot be held liable for the infringing activities of their users. The Electronic Frontier Foundation argued on behalf of Streamcast, the creator of the Morpheus software, in a case that pitted dozens of entertainment conglomerates against two small software companies.

The Ninth Circuit decision is based in part on the fact that P2P networks have significant non-infringing uses, and that they can help artists earn money. The ruling is similar to the Supreme Court's decision in the 1984 Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR.

"Today's ruling will ultimately be viewed as a victory for copyright owners. As the court recognized today, the entertainment industry has been fighting new technologies for a century, only to learn again and again that these new technologies create new markets and opportunities," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "There is no reason to think that file sharing will be any different."

The court's decision was unanimous.

"This is a victory for innovators of all stripes," added von Lohmann. "The court's ruling makes it clear that innovators need not beg permission from record labels and Hollywood before they deploy exciting new technologies."

It is likely that the entertainment companies will appeal the Ninth Circuit's decision to the Supreme Court.

Austin, TX - The Texas Secretary of State today agreed to indefinitely postpone a meeting of the state's voting examiners following the filing of a lawsuit by the ACLU of Texas and a Texas voter. The Electronic Frontier Foundation is serving as co-counsel in the case. The lawsuit challenged the practice of holding closed meetings in violation of the state's Open Meetings Act.

Today, the parties decided to postpone an upcoming voting examiner meeting that had been set for August 18, 2004. As a result of the Secretary of State's decision, the emergency hearing in the case set for Monday, August 16 has been cancelled. Under the agreement, the Secretary of State and voting examiners are required to notify the plaintiffs at least 14 days before any subsequent meeting is held. The underlying lawsuit seeking to open the voting examiner meetings to public scrutiny is not affected and will proceed as planned.

"We are pleased that the voting examiners will not hold their August 18th closed meeting," said Adina Levin of ACLU-Texas. "However, we need to ensure that this will become a permanent solution instead of just a temporary one. We will proceed with this lawsuit until the public is guaranteed that the certification process of voting technology will be an open and transparent one."

Levin noted that it is unclear whether the Secretary of State's decision to postpone the upcoming meeting meant that future meetings would be open to the public. "We hope this is a sign that the Secretary of State is taking the time to ensure that future meetings comply with Open Meetings Act requirements, and not an attempt to find another way to keep Texas election systems meetings closed," said Levin. "We have not received any promise to that effect, and the Secretary of State has made no other indication that that will happen."

Organization Grows with Addition of Attorneys, Technical, and Membership Staff

San Francisco, CA - Today the Electronic Frontier Foundation announced the addition of four new staff members. Kurt Opsahl and Matt Zimmerman join the legal team as staff attorneys, while systems administrator Matt Peterson brings expertise to the technical team and membership coordinator Kyle Pedersen will work on EFF membership development.

Kurt Opsahl graduated from the Boalt School of Law at UC Berkeley and comes to EFF from law firm Perkins Coie, where he was an associate. There he represented technology clients on intellectual property, privacy, defamation, and other online liability matters, including working on Kelly v. Arribasoft, MGM v. Grokster and CoStar v. LoopNet. For his work responding to government subpoenas, Opsahl is proud to have been called a "rabid dog" by the Department of Justice. As staff attorney at EFF, he will work on privacy, surveillance and other constitutional issues.

Matt Zimmerman earned his J.D. from Columbia University. Prior to joining EFF, he worked as the Privacy Fellow at the public interest law firm The First Amendment Project, where he specialized in privacy and open government issues; previously, he worked at law firm Morrison & Foerster, where he focused on commercial litigation matters, including patent and technology licensing disputes. At EFF, Zimmerman will be the first staff attorney to dedicate himself entirely to electronic voting issues.

Matt Peterson, EFF's systems administrator, comes to the organization from Surf and Sip, a wireless networking company. He is one of the founders of the Bay Area Wireless User Group (BAWUG), and has spent several years working with nonprofit organizations in Asia to set up wireless networks for regions with little or no Internet access.

New membership coordinator Kyle Pedersen comes to EFF from the Urban Justice Center in New York, where he worked as an activist on mental health issues. He has also been active in tenant's rights causes. At EFF, he will be in charge of servicing our existing members and getting individuals excited about our work so they decide to join.

"EFF continues to attract some amazing talent," said EFF Executive Director Shari Steele. "Kurt and Matt are both experienced attorneys who are already up to speed on our issues. And Matt and Kyle are both young and enthusiastic, as well as well-suited to serve in their current roles."

With these new hires, EFF brings its lawyer total up to nine. This is an unprecedented number for the organization. "We have found that our legal expertise is needed on so many fronts," added Steele. "We're ready to continue to make a difference as law develops in the digital world."

California - In a ruling the Electronic Frontier Foundation hailed as a step forward, the United States District Court for the Northern District of California ruled today that Visa and several other credit card companies would not be held liable for the copyright infringements of its business customers.

The case was brought by Perfect 10, an adult website that accused several credit card companies of copyright infringement because they were providing financial transaction services for sites containing allegedly infringing images. Rather than suing the alleged infringers, Perfect 10 sued their financial service providers for contributory infringement. Judge James Ware dismissed the case, citing the companies' inability to control the content of the sites with which they do business.

EFF Staff Attorney Jason Schultz added, "Without the protections acknowledged by this ruling, any copyright owner could drag dozens of general service companies into court -- from the gas company to the electric company. This decision imposes important limits on overzealous copyright owners."

Perfect 10 brought a similar suit against financial transactions companies and age verification services in the Central District of California earlier this year. Most of the claims in that suit were dismissed, as well.

Lawsuit Attacks Secrecy of Meetings Where E-voting Machines Are Evaluated

Austin, TX - The ACLU of Texas and a Texas voter today filed a lawsuit demanding that the meetings of the state's voting examiners be held in public.

The voting examiners are responsible for studying electronic voting machines and other voting technologies and recommending to the Secretary of State which systems should be certified for use in Texas. In the past few years, the Secretary of State has routinely adopted the recommendations of the panel, yet he has rebuffed efforts by the public to observe the proceedings, claiming that the panel is not subject to Texas' Open Meetings Act.

Recently, the Texas Safe Voting Coalition obtained videotapes of previous meetings, including one involving Diebold, that suggest a lack of rigor and failure to properly address security and certification compliance issues.

"Texans deserve secure, reliable voting machines, and they deserve to see that the officials charged with certifying those machines are conducting a rigorous evaluation to ensure the systems are secure and effective," said Adina Levin of theTexas ACLU. "All aspects of the voting process in a democracy should be open and transparent, to give citizens confidence in their vote. The evaluation process should not be hidden behind closed doors."

The case, which will be handled by lead counsel Renea Hicks, seeks a ruling opening up the meetings prior to the upcoming August meeting of the examiners. The lawsuit comes on the heels of a letter filed with the Attorney General in July by Consumers Union that also argued that these closed meetings violate the Texas Open Meetings Act. "The public's interest in the state's certification of electronic voting equipment is high," noted Kathy Mitchell, Open Government Policy Analyst for Consumers Union. "The meetings of the examiners represent the critical point of deliberation during which key issues of interest to the public are discussed and debated."

"The country is beginning to look under the rug of election certifications and testing processes, and the scene is not pretty," added Cindy Cohn, Legal Director of the Electronic Frontier Foundation, which is serving as co-counsel in the case. "Opening up Texas certification processes should send a signal to testing and certification authorities nationwide that they must perform rigorous, public review of the systems that count our votes."

EFF and National Voter Rights Organizations Support Appeal to State's Highest Court

Maryland - Lawyers representing eight Maryland citizens today filed a petition with the state supreme court seeking to decertify or fix Diebold voting machines that computer security experts have deemed insecure. The Electronic Frontier Foundation (EFF), working with over a dozen organizations concerned with voting integrity, has filed a friend of the court brief supporting the suit. Groups signing on to the brief include People for the American Way, Common Cause, Center for Constitutional Rights, America's Families United, and the Verified Voting Foundation.

In Schade v. Lamone, the plaintiffs ask that the state of Maryland address widely publicized security and reliability concerns with the Diebold machines and implement a voter verified paper ballot as required by state law. In the short term, the voters are seeking an injunction that would require the state to take steps to address these concerns before the November 2004 elections, including decertifying the machines altogether. The interim steps the lawsuit asks the state to take include implementing the same 23 basic security standards that California is now implementing, and offering Maryland voters the alternative of a paper ballot if they do not wish to have their vote counted by the Diebold machines.

EFF Legal Director Cindy Cohn said, "The Maryland court has the opportunity to make a more secure and accurate election in November."

If the Maryland supreme court agrees to hear the case, it would be the highest court in the country to consider this issue.

San Francisco, CA - For the past four years, the Electronic Frontier Foundation has been thanking its members for their support with a free outdoor concert called Freedom Fest. This year's event will be bigger and better than ever. EFF has partnered with Red Hat, the world's leading provider of Linux and open source solutions, to conduct the festivities as part of the LinuxWorld Conference and Expo in San Francisco. The Freedom Fest will be held outdoors at the gorgeous Yerba Buena Gardens, with an all-star lineup that features celebrated local artists Austin Willacy, Josh Fix and the Furious Force, and The Megan Slankard Band.

Warwick Davies, Group Vice President, IDG World Expo, said, "We're pleased to have EFF's Freedom Fest at LinuxWorld. It's a natural partnership, and we hope everybody who attends has a great time."

Red Hat Vice President of Corporate Communications David Burney added, "As an open source company, Red Hat believes in providing freedom and choice to technology users, and we are excited to partner with EFF to bring this great event to the Bay Area."

In addition to celebrating digital rights, this year's Freedom Fest is held in honor of the attorneys who volunteered their time to help win the Bunner case, defending Andrew Bunner and hundreds of other Linux users who hosted DeCSS code on their websites against a lawsuit brought by several large entertainment companies. The annual concert is also a chance for people interested in EFF issues to meet the staff in a relaxed atmosphere, enjoy some free music, and share food and drink. And for the first time ever, the event will be simulcast live over the Web at the EFF website.

The EFF Freedom Fest will take place on Wednesday, August 4th, from 5:00-8:00 p.m. The event is open to everyone attending LinuxWorld and all EFF supporters.

Akron, OH - Organizations focused on election integrity today asked a federal judge to choose secure electronic voting machines with voter-verified paper audit trails as the remedy for a lawsuit challenging the use of punch card and certain kinds of optical scan systems in Ohio.

In a friend-of-the-court brief, the Electronic Frontier Foundation, the Citizens' Alliance for Secure Elections, the Verified Voting Foundation and VotersUnite wrote that they "urge that in considering the issues and potential remedies in this case, this court not suggest or require that any Ohio Counties adopt electronic voting machine technologies that do not contain a voter-verified paper ballot."

The brief also lists 18 incidents in which electronic voting machines caused problems in elections, including several where voters were disenfranchised and one in which an election had to be redone due to problems with the machines. It discusses a variety of available technologies that are accessible and secure, and presents evidence that e-voting machines may not be the panacea for disabled voters that they are advertised to be.

Voter-verified paper ballots permit voters to check a paper ballot to make sure that their votes are recorded as intended and allow election officials to perform recounts and audits.

The Verified Voting Foundation is a nonprofit organization championing reliable and publicly verifiable elections. Founded by Stanford University Computer Science Professor David Dill, the organization supports a requirement for voter-verified paper ballots on electronic voting machines allowing voters to inspect individual permanent records of their ballots and election officials to conduct meaningful recounts as needed.

San Francisco, CA -- The Electronic Frontier Foundation (EFF) has been awarded three grants totaling $131,000 for its work leading the national litigation strategy on computerized voting. The first grant of $85,000 is from the Washington, DC-based Arca Foundation; the second grant of $21,000 is from the Quixote Foundation of Madison, WI; and the third grant is from the Rockefeller Family Fund based in New York City.

"The reports of problems using computerized voting machines increase with every election," said Cindy Cohn, Legal Director for EFF. "These machines have been hastily developed and poorly tested. Worse, since they do not create voter-verifiable paper ballots, there is no way to do a real recount or audit of election results." EFF has joined with other organizations in a nationwide campaign to raise awareness about the ways insecure voting machines threaten the democratic process. Cohn added, "We are thrilled to have the support of the Arca Foundation and the Quixote Foundation in this endeavor. Their grant-making focuses on empowering citizens to help shape public policy -- this is a great partnership."

Arca Foundation Executive Director Donna Edwards said, "This is a natural affiliation. Our Foundation is dedicated to the pursuit of social equity and justice -- if we lose the ability to have our votes verified, we give up our most basic constitutional rights. We are pleased to support EFF in this endeavor."

Lenore Hanisch of the Quixote Foundation added, "EFF is performing an essential public service, providing litigation services for computerized voting problems. We're very happy to help them be able to perform this important work."

EFF is developing a national legal and activist support network to tackle problems related to governments' use of computerized voting machines. The organization will litigate for e-voting reform and do outreach with traditional voting rights organizers before and after the November presidential election. Ultimately, the goal is to ensure accessible, secure voting on transparent, auditable systems to ensure that votes are counted as cast.

Lisa Guide, Associate Director of the Rockefeller Family Fund said, "Our purpose is to help citizens exercise the right to vote, and to make government more accountable and responsive. This grant to EFF helps fulfill our goals and the goals of this project."

Dept. of Homeland Security Puts Stake in the Heart of Passenger Profiling System

Homeland Security Secretary Tom Ridge said yesterday that development of CAPPS II - the government's controversial airline passenger surveillance program – will not continue. As reported by USA Today:

Asked Wednesday whether the program could be considered dead, Ridge jokingly gestured as if he were driving a stake through its heart and said, "Yes."

EFF Senior Staff Attorney Lee Tien said, "Finally, the Department of Homeland Security has recognized what EFF has been saying all along: the proposed CAPPS II system would be an ineffective, expensive, and unnecessary invasion of travelers' privacy."

Los Angeles - A federal judge today ruled that California Secretary of State Kevin Shelley's requirements to ensure the security of electronic voting machines do not violate federal or state law. The Electronic Frontier Foundation, California Voter Foundation, VerifiedVoting.org, and Voters Unite! submitted a friend-of-the-court brief and a surreply in support of Secretary Shelley. The case is Benavidez v. Shelley.

"This decision is a landmark," said EFF Legal Director Cindy Cohn. "The court said - in clear, unambiguous terms - that requiring a paper trail for e-voting machines is consistent with the 'obligation to assure the accuracy of election results.' That's an enormous victory for secure elections."

The court determined that the "defendant's decision to decertify touch-screen voting machines and to withhold further certification until he is satisfied that manufacturers have complied with specified conditions is a reasonable one. It is based on studies conducted and information gathered which convinced him that the voting public's right to vote is not adequately protected by the systems currently in place."

This ruling is particularly significant because Secretary Shelley's e-voting reforms are setting the tone for national debate on this issue. He was the first state election official to issue a blanket requirement for voter-verified paper audit trails (VVPAT) on e-voting machines, though Nevada later followed suit. On April 30, after further review and a scandal with embattled voting machine vendor Diebold Election Systems, Shelley decertified all of the state's e-voting machines until additional safeguards could be implemented. His responsiveness to the growing evidence of problems in e-voting systems has led to pressure in states like Maryland and Ohio, where similar evidence has been downplayed.

"California is at the forefront of the nationwide movement for e-voting reform," said California Voter Foundation President Kim Alexander. "Today's court decision reinforces the leadership California Secretary of State Kevin Shelley is bringing to this critical issue."

The suit was brought by disability rights advocates and four California counties (Riverside, San Bernardino, Kern and Plumas) that oppose Secretary Shelley's voter verified paper trail requirement and April 30th decertification orders.

The ruling concerned the plaintiffs' requests for a preliminary injunction and temporary restraining order to prevent Shelley's orders from taking effect.

About EFF:
The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at http://www.eff.org/

About the California Voter Foundation:
The California Voter Foundation is a nonprofit, nonpartisan organization
dedicated to promoting and applying the responsible use of technology to
improve the democratic process. For more information about the California Voter Foundation, please visit http://www.calvoter.org

One Year Before the Broadcast Flag Locks Up DTV Signals, EFF Announces Plans for a "Build Your Own DTV" Cookbook

San Francisco - One year from today, on July 1, 2005, an FCC regulation known as the Broadcast Flag will lock up your digital television signals. But EFF's "DTV Liberation Project" aims to help the public keep over-the-air programming free.

The Broadcast Flag, which places copy controls on DTV signals, attempts to stop people from making digitally-perfect copies of television shows and redistributing them. It also stops people from making perfectly legitimate personal copies of broadcasts. More disturbing, the Broadcast Flag will outlaw the import and manufacture of a whole host of personal video recorders (PVRs), TiVo-like devices that send DTV signals into a computer for backup, editing and playback. After the Broadcast Flag regulations go into effect, all PVR technologies must be Flag-compliant and "robust" against user modification

San Francisco - Start forming your patent-busting posses! Today, the Electronic Frontier Foundation's Patent Busting Project announced which patents the organization will target first in its campaign to rid the world of frivolous patent infringement lawsuits. After sifting through dozens of software and Internet-related patents submitted to its patent busting contest, EFF targeted ten whose crimes have made them enemies of the public domain. All the most-wanted patents are dangerously overbroad; many pose a threat to freedom of expression online. And every single one of the targeted patents is held by an entity that has threatened or brought lawsuits against small businesses, individuals, or nonprofits.

Target number one is Acacia, a company that has litigated relentlessly against small businesses to enforce patents that it claims cover a broad array of technologies used to send and receive streaming media online. Victims of Acacia's legal threats include websites that host home videos and several "mom-and-pop" adult media companies.

Other offenders include Acceris, which claims that its patents cover any technologies (such as Voice over Internet Protocol, or VoIP) that allow people to make phone calls over the Internet, and ClearChannel, which has been threatening artists and small CD companies that record live concerts and burn them to CDs for fans at the end of a show. Another target is Test.com, which has a patent on a method for taking and scoring tests online, and has been sending threatening letters to universities with distance learning programs.

"Patents are meant to protect companies against giant competitors, not to help them prey on folks who can barely afford a lawyer," said EFF Staff Attorney Jason Schultz, who leads the Patent Busting Project. "We hope our project will not only assist the victims of these abusive patents but also help make the case for global reform of the patent system."

With its targets in sight, EFF's team of lawyers, technologists, and experts will now begin to research and collect prior art. Prior art is hard evidence that a patent is "obvious" because it is based on a commonly known idea or because the claimed "invention" actually existed before the patent was filed. Once the team has gathered enough prior art on a given patent, EFF will submit a petition to the U.S. Patent and Trademark Office in a legal process known as "reexamination." If the USPTO finds the prior art compelling, it will formally revoke the patent and release the idea back into the public domain, where it belongs.

The First Circuit Court of Appeals dealt a grave blow to the privacy of Internet communications with its
http://www.ca1.uscourts.gov/pdf.opinions/03-1383-01A.pdf">decision today in the case of U.S. v. Councilman. The court held that it was not a violation of criminal wiretap laws for the provider of an email service to monitor the content of users' incoming messages without their consent. The defendant in the case is a seller of rare and used books who offered email service to customers. The defendant had configured the mail processing software so that all incoming email sent from Amazon.com, the defendant's competitor, was copied and sent to the defendant's mailbox as well as to the intended recipient's. As the court itself admitted, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."

"By interpreting the Wiretap Act's privacy protections very narrowly, this court has effectively given Internet communications providers free rein to invade the privacy of their users for any reason and at any time," says Kevin Bankston, EFF attorney and Equal Justice Works fellow. "This decision makes clear that the law has failed to adapt to the realities of Internet communications and must be updated to protect online privacy."

EFF applauds today's Supreme Court decision to uphold a preliminary injunction that restricts the government from enacting the Child Online Protection Act (COPA). The law, which was passed in 1998, criminalizes sexual expression on the Internet that could be deemed "harmful to minors" by a reasonable person using contemporary community standards. Justice Kennedy wrote the opinion, emphasizing that the government failed to demonstrate that COPA is not the "least restrictive" method for protecting children online. He explained that filtering and blocking software are examples of less restrictive ways to regulate minors' access to harmful material.

EFF attorney and Equal Justice Works Fellow Kevin Bankston said, "The Supreme Court rightly recognized that there are ways of protecting our children from harmful material on the Internet that are much less restrictive and less damaging to First Amendment principles than COPA."

Added EFF Policy Analyst Annalee Newitz, "We are pleased that Justice Kennedy's opinion recommended solutions that would give people the choice to block harmful content on their home PCs, rather than chilling free speech at its source by threatening Internet speakers with criminal prosecution." Justice Kennedy wrote that COPA's criminal penalties, which include steep fines and even imprisonment, are a potentially "repressive force" in a free society.

The Supreme Court decision sends COPA back to the District Court for full trial.

San Francisco - With Senator Orrin Hatch (R-Utah) and his colleagues pushing hard to bring the Inducing Infringement of Copyright Act ("Induce Act") to the full Senate for a vote, the Electronic Frontier Foundation (EFF) is already dreading the loss of all technologies this legislation has the potential to destroy. Although Hatch wants the public to believe that the legislation will only hurt "the bad guys" in the P2P wars, EFF argues that the Act is so sweeping that "the good guys" will get taken down too. The Induce Act, which would make it illegal to "induce" people to infringe copyright, could potentially outlaw everything from CD burners to the iPod.

To dramatize how the Induce Act might harm innovators and consumers, EFF attorneys realized they would have to make the threat a reality by becoming devil's advocates. Today, EFF posted a mock complaint in a lawsuit that could be brought against Apple, accusing the corporation of selling its popular iPod music player to induce people to infringe copyright.

The complaint, which mimics the format of an actual complaint that record companies might draft, points out that "Apple advertises that its 40 GB iPod can hold 'up to 10,000 songs.' This amount of capacity far exceeds the total CD collection of the vast majority of Americans. This suggests that Apple knew and intended that iPod owners would be getting their music from elsewhere, including P2P networks." The complaint also named Toshiba as a defendant for manufacturing the hard drive used exclusively by Apple for its iPod and CNET Networks for writing a review of the iPod that instructs users on how to copy music files between computers.

Because the Induce Act defines "intent" as being "determined by a reasonable person taking into account all relevant facts," it's unlikely that a technology company like Apple would be able to easily dismiss any lawsuit brought against it. It would face the prospect of an expensive trial, with all the attendant legal fees and negative publicity. One such company, SonicBlue, recently fought against a group of copyright holders in court over its ReplayTV and spent close to $1,000,000 per month in legal fees alone. In essence, this means that copyright owners can use the "inducement" theory to inflict an arbitrarily large penalty on any tech company that builds a device they don't like. That's not a pleasant possibility for an innovator to face as he or she tries to launch a new product.

EFF hopes that its mock complaint, brought by a hypothetical "group of major recording labels" against Apple, will raise awareness about how the Induce Act will destroy incentives to innovate. "We knew we could draft a legal complaint against any number of the major computer or electronics manufacturers for the everyday devices we all know and love, like CD burners and MP3 players," said EFF Staff Attorney Jason Schultz. "We picked Apple as our mock target because one could argue it's 'reasonable to know' that having an iPod enhances the lure of using P2P to download music."

"We don't mean to single out Apple, Toshiba or CNET," said Cindy Cohn, EFF's legal director. "If the Induce Act passed, a similar lawsuit could easily be imagined against Hewlett-Packard for selling PCs equipped with CD burners or against cell phone manufacturers who allow users to swap ringtones."

A broad group of organizations and companies representing diverse sectors of the U.S. economy has come together to form a new organization, the Personal Technology Freedom Coalition.

With members ranging from the telephone industry to high-tech firms, libraries, universities and the public-interest sector, the Coalition is committed to repairing recent damage dealt to the Founders' original commitment to balanced copyright protection. Specifically, the Coalition will press for consumer protections in the use of digital music and movies, including working to ensure that consumers can legally use and have access to digital content they have purchased.

The group supports the right of inventors to improve upon technologies already on the market, in particular the right of researchers to protect the nation from the threat of cyber terror. Members also support parents

Civil Liberties Group and Technical Publisher Work Toward a Common Goal

San Francisco - No Starch Press has announced a partnership with the Electronic Frontier Foundation (EFF) in which the progressive technical publisher will donate a percentage of its sales to EFF.

When customers purchase books from a special area on the publisher's website, No Starch will donate 30% of the purchase price to EFF. No Starch published EFF client Andrew "bunnie" Huang's Hacking the Xbox last year and is dedicated to providing the public with information about open source software and network exploration.

No Starch Press Founder Bill Pollock said, " I am so pleased to be supporting EFF, an organization I greatly admire. Whether fighting to protect our rights to remain anonymous, or fighting against wrongheaded acts like the DMCA or the USA Patriot Act, EFF is the one organization watching our backs."

EFF recently entered into similar partnerships with 321 Studios and Slim Devices. "EFF is proud do have the support of these innovative companies," lauded EFF Executive Director Shari Steele. "It's important to see creative companies understand that technology can and should be freedom enhancing." More and more, especially in the world of intellectual property, it has become increasingly difficult for companies to simply create technology without paying attention to the legal framework in which their products will be released. Increasingly, innovative companies face legal challenges from over-zealous intellectual property holders, which block the development of new products and the publication of technical books that the public wants. As a defender of free speech in the digital world, EFF is is a natural partner for these companies.

San Francisco, CA and New York, NY - If the Recording Industry Association of America (RIAA) gets its way, consumers will not be permitted to listen to digital radio broadcasts unless they use an industry-approved device. The RIAA is particularly hostile to any TiVo-like recording device for digital radio. Today, the Electronic Frontier Foundation (EFF) and the Brennan Center for Justice filed comments with the Federal Communications Commission (FCC) in an attempt to stop the RIAA's plan to regulate digital radio technologies of the future.

In a letter to the FCC, the RIAA argued that the commission should force broadcasters to encrypt their digital radio signals so that only approved devices can descramble and play digital broadcasts. This is only the latest chapter in a decades-long campaign by the RIAA to stop home recording of radio broadcasts. But as EFF and the Brennan Center point out in their comments, it is perfectly legal for people to make home recordings of radio broadcasts under current copyright laws.In essence, the RIAA is urging the FCC to override home recording rights guaranteed to the public by copyright law.

Marjorie Heins, founder of the Brennan Center's Free Expression Policy Project, said, "Having failed in their congressional efforts to restrict home taping, the recording industry is now asking the FCC to go beyond copyright law to interfere with the public's right to make recordings of radio broadcasts for home use. This would be a perversion of the FCC's role, and home recording poses no threat to corporate copyright interests that could conceivably justify it."

"The RIAA is trying to halt the development of next-generation digital technologies, like a Tivo for radio -- technologies that are perfectly legal under copyright law," said EFF Senior Staff Attorney Fred von Lohmann. "This is about restricting personal home taping off the radio, something that Congress has said is legal and that millions of Americans have been doing for decades."

Based on arguments made by civil liberties group the Electronic Frontier Foundation (EFF) and attorney Albert Zakarian for defendant Mike Treworgy, the Eleventh Circuit Court of Appeals today ruled that DirecTV cannot sue individuals for "mere possession" of technology that is capable of intercepting DirecTV's satellite signal. "We're glad to see the court apply common sense to this issue," said EFF Staff Attorney Jason Schultz. "Merely possessing a device doesn't harm anyone and shouldn't give a company like DirecTV the right to drag you into court without proof that you're actually stealing something from them."

The Electronic Frontier Foundation (EFF) is calling on the public to help identify patents that are having negative effects on Internet innovation and free expression. As part of EFF's Patent Busting Project, EFF seeks nominations for the ten worst offenders in the world of intellectual property. Winners will become the first targets for the project's team of attorneys, technologists and experts, who will file "re-examination" requests with the United States Patent and Trademark Office (USPTO), asking the agency to revoke the patents.

EFF staff attorney Jason Schultz, who heads the project, said he can't wait to see what the contest turns up. "We have seen illegitimate patents asserted on such simple technologies as one-click online shopping, video streaming, and paying with credit cards online. When individuals and small businesses are faced with million-dollar legal demands, they have no choice but to capitulate and pay license fees. We aim to change that."

To qualify for the contest, a bad patent has to be more than just stupid and invalid. It must be issued in the United States and be software or Internet-related. Also, the patent owner must be actively threatening or suing people for licensing fees. Contest judges are particularly interested in patents for technologies that enable free expression, such as streaming video, blogging tools, and voice over IP (VoIP). "Patent owners who claim control over communication tools can threaten anyone who uses them, even for personal or non-commercial purposes," explained Schultz. "Overreaching patent claims unfairly reduce the tremendous benefits that software and technology bring to freedom of expression."

The contest opens today and closes on June 23. Winners will be announced on June 30.

In a victory for the First Amendment rights of Internet users, jurors returned a verdict today acquitting University of Idaho graduate student Sami Omar Al-Hussayen of terrorism charges. Hussayen had been charged in federal court with providing "material support" to terrorists in the form of "expert advice and assistance," based on his activities as webmaster for a number of web sites and message boards serving Muslims. This same law, which was expanded by the USA PATRIOT Act, has already been found unconstitutional by one federal court.

"Providing a forum for Internet speakers -- especially those with controversial political or religious views -- is a service to the First Amendment, not a crime," says EFF attorney and Equal Justice Works fellow Kevin Bankston. "Hopefully, the jury's acquittal in this case will convince the Department of Justice to think twice before it again tries to prosecute someone for exercising his right to free speech."

San Francisco and Berkeley, CA - Your employer just laid off 300 of your colleagues without notice and without severance pay. So you go online and post an angry, anonymous comment about it on a Yahoo! message board. Although you could lose your job if your boss discovered what you

EFF Files Brief in Case Challenging the Use of Insecure Diebold E-Voting Machines

Maryland - EFF has filed a friend-of-the-court brief in a Maryland case that challenges the integrity of that state's electronic voting machines, which are manufactured by the troubled electronic voting machine company, Diebold Election Systems. EFF presented evidence of problems with electronic voting machines from more than 18 elections nationwide in the past few years, including the 2002 gubernatorial election and March 2004 primaries in Maryland. The evidence includes reports of lost votes, votes registering for the wrong candidate, and voters turned away from the polls using both Diebold and other electronic voting systems.

In addition, the California Secretary of State found that Diebold illegally installed uncertified software onto voting machines in 17 counties and referred the matter to the California Attorney General's office for potential criminal prosecution. EFF's brief also provides information on the growing number of technologies that can offer secure voting as well as accessibility for people with manual and visual disabilities.

In Schade v. the Maryland State Board of Elections, the plaintiffs are a group of concerned Maryland voters who ask that the state of Maryland address widely publicized security and reliability concerns with the Diebold machines and implement a voter verified paper ballot as required by state and federal law. In the short term, the voters are seeking an injunction that would require the state to either take steps to remedy these concerns before the November 2004 elections or follow California's lead in decertifying the machines altogether. The interim steps the lawsuit asks the state to take include implementing the same 23 basic security standards that California is now implementing, and offering Maryland voters the alternative of a paper ballot if they do not wish to have their vote counted by the Diebold machines.

Several independent researchers, including two teams hired by Maryland state officials, have demonstrated that the machines the state of Maryland intends to use in the upcoming November elections have a long list of problems and are vulnerable to vote tampering. One state-paid researcher noted that the results of an election could be altered by "an 8th grader." Most importantly, the Diebold machines used in Maryland provide no voter verified audit capacity, meaning that there is no reliable way to conduct a recount to ensure that the systems have not been tampered with or are malfunctioning.

EFF is joined by several other groups who support the plaintiffs in this case. Other signatories to the brief are Verified Voting and VotersUnite!, two grassroots voter organizations. Christopher M. Loveland of the firm of Schmeltzer, Aptaker & Shepard, PC, is local counsel in the case.

San Francisco -- The Electronic Frontier Foundation (EFF) yesterday filed a friend-of-the court brief supporting the American Civil Liberties Union (ACLU) in a suit challenging the constitutionality of National Security Letters (NSLs). Authorized by the USA PATRIOT Act and issued directly by FBI agents without any court supervision and without a show of probable cause, the letters are used to demand detailed information about people's private Internet communications from ISPs, web mail providers, and other communications service providers. The people whose communications are searched are not notified, and every letter is accompanied by a gag order that prohibits the letter's recipient from ever revealing its existence.

"Before PATRIOT, the FBI could use National Security Letters only for securing the records of suspected terrorists or spies," said EFF Attorney and Equal Justice Works Fellow Kevin Bankston. "Now the FBI can use them to get private records about anybody it thinks could be relevant to a terrorism or espionage investigation, without ever having to show probable cause to a judge."

In its brief, EFF argues that the portion of the PATRIOT Act authorizing these warrantless government demands is unconstitutional, violating both First Amendment free speech rights and the Fourth Amendment right against unreasonable searches and seizures. By allowing FBI agents to access the complete online history of innocent Americans without proper safeguards against abuse, PATRIOT threatens to chill free speech on the Internet and make it impossible for Internet users to share unpopular ideas or associate with controversial groups anonymously.

"Using National Security Letters, the FBI can see what websites you visit, what mailing lists you subscribe to, who you correspond with, and much more -- all without judicial oversight of any kind," Bankston explained. "Yet this unrestrained power to examine innocent citizens' First Amendment activities online is merely one of the unconstitutional surveillance authorities granted to the FBI by the PATRIOT Act."

A favorable judgment in the ACLU's case would prohibit the FBI from using the National Security Letters any further.

Co-signatories to the EFF brief include the Center for Constitutional Rights, the Center for Democracy and Technology, the Electronic Privacy Information Center, the Online Policy Group, Salon Media Group's division the WELL, and the U.S. Internet Industry Association.

San Francisco, CA -- EFF today filed an amicus brief in Benavidez v. Shelley (case number 2:04-cv-03318-FMC-PJW), a suit brought by Riverside County and several disability rights groups against California Secretary of State Kevin Shelley. The suit seeks to delay Shelley's order, issued April 30, that every California voter have the option to cast a paper ballot in the November presidential election. In its brief, EFF, joined by VerifiedVoting.org, the California Voter Foundation and VotersUnite!, argues that the court should deny this request.

San Francisco - The Electronic Frontier Foundation (EFF), the leading civil liberties organization working to defend freedom in the digital world, has received a $50,000 grant from The Parker Family Foundation of Lexington, Massachusetts, for EFF's Patent-Busting Project.

The World Intellectual Property Organization of the United Nations (WIPO) has accredited EFF to attend and observe the 11th session of the WIPO Standing Committee on Copyright and Related Rights in Geneva on June 7-10, 2004.

The committee meeting will discuss the proposed Broadcasting Treaty, which would extend the scope and duration of rights of broadcasters, cablecasters, and possibly, webcasters. EFF is concerned that, as currently drafted, this treaty may frustrate the free flow of information, even if that information is in the public domain. EFF will be attending with a coalition of non-governmental organizations (NGOs), including the Consumer Project on Technology (CPTech), which aims to educate national delegates about the public interest concerns with the treaty's more problematic clauses.

"Big entertainment companies are present in force at these meetings, and it's high time that public-interest groups took a seat at the table to explore a range of balanced approaches," said Cory Doctorow, EFF European Affairs Director.

"We welcome the opportunity to participate in this important discussion and look forward to working together with the delegates in future meetings." added EFF staff attorney Gwen Hinze.

Washington, D.C. - Today at 10:00 AM., the House Energy and Commerce subcommittee on Trade, Commerce and Consumer Protection held a hearing on H.R. 107, also known as the Digital Media Consumers' Rights Act (DMCRA). Introduced by Rep. Rick Boucher (D-VA) and Rep. John Doolittle (R-CA), the DMCRA aims to reform the DMCA and require the recording industry to label CDs containing technological barriers that restrict consumers' rights.

EFF staff attorney Fred von Lohmann attended the hearing and reported that news from the Capitol is promising.

EFF this week filed comments (PDF) in the FCC's "Cognitive Radio" proceeding (ET Docket No. 03108) asking the Commission to answer empirically the question of what spectrum is actually in use (as opposed to simply allocated to a licensee), and to uphold its duty under the First Amendment by creating opportunities for flexible, software-defined radios to thrive on open hardware and in open systems.

"Radios built on PCs present unique enforcement challenges for the Commission," said Cory Doctorow, EFF's European Affairs Coordinator. "But retarding innovation in the hope that its enforcement tools will remain effective is the wrong way to meet these challenges. Instead, the Commission should assume
that our computers will be the basis of open, frequency-agile radios, then determine how best to address the problem of radios that harmfully interfere."

Acting to ensure the integrity of California's November elections, California Secrectary of State Kevin Shelley on Friday announced the adoption of a new state policy making it so that all California voters will have the option of recording their votes on paper. In addition, the state has decertified Diebold's infamous TsX electronic voting machines, while mandating key security enhancements for the voting terminals that will remain in use.

"Today's decision is historic. The largest state in the nation is once again pointing out that un-auditable e-voting has no clothes," said EFF Activism Coordinator Ren Bucholz. "Shelley has responded to the disenfranchisement of tens of thousands of California voters, repeated violations of election law, and the overwhelming
body of evidence that these systems are vulnerable to attack."

Shelley previously mandated that all electronic voting machines have voter-verifiable paper trails by 2006, becoming the first Secretary of State in the nation to do so.

San Francisco, CA - In light of growing concerns about illegitimate software and Internet patents, the Electronic Frontier Foundation (EFF) today announced a new initiative to combat the chilling effects bad patents have on public and consumer interests.

"Patents traditionally only targeted large commercial companies," said EFF Staff Attorney Jason Schultz. "Now bad patents are threatening non-profits, small businesses, and even individuals who use software and Internet technology." These threats target non-commercial personal use, such as building a hobbyist website or streaming a wedding video to your friends.

The new EFF initiative seeks to document these threats and fight back against them. EFF has pledged to file "re-examination" requests with the United States Patent and Trademark Office (PTO), asking the agency to revoke patents that are having negative effects on Internet innovation and free expression.

"More and more, people are using software and Internet technology to express themselves," said EFF Staff Attorney Wendy Seltzer. "Patent owners who threaten this expression are creating a chilling effect on free speech."

The EFF announcement comes on the heels of two recent public criticisms of the patent system, one by the Federal Trade Commission and the other by the National Academy of Sciences.

Washington, D.C. - The Electronic Frontier Foundation (EFF)
today submitted comments to the Federal Communications
Commission opposing an FBI proposal that would extend a
decade-old telephone surveillance law to the Internet. The
Communication Assistance for Law Enforcement Act of 1994
(CALEA) forced telecommunications carriers like your phone
company to build convenient wiretap features into their
networks. Congress never intended CALEA's requirements to
reach the Internet, but now the FBI is demanding that
broadband ISPs build "wiretappability" into their equipment
too.

"The FBI has made it clear that they don't want to
understand how the Internet is fundamentally different from
the public phone service," said EFF Staff Technologist Chris
Palmer. "The rapid innovation and open access that makes the
Internet great will be severely hampered if creators have to
get past the FCC and FBI every time they want to make an
innovative product."

EFF Staff Attorney Lee Tien continued, "The FBI's plan to
turn the FCC into the 'Federal Bureau of Innovation Control'
will be terribly expensive for everyone involved - except
the FBI. The FCC, Internet service providers, equipment
builders and broadband consumers are being set up to
subsidize the FBI's surveillance state."

EFF's comments were filed in response to an FBI rulemaking
proposal to the FCC.

The Federal District Court in the Middle District of Florida today denied the motion of sixteen record companies to force the Internet Service Provider Bright House to provide the identities of 25 individuals accused of copyright infringement using the FastTrack peer-to-peer network. The Court decided that the record companies had improperly joined the 25 individuals, who had nothing in common other than their ISP, into a single lawsuit. The court noted that joining the defendants together would result in "unreasonable prejudice and expense to the Defendants" and cause "great inconvenience" to the court.

"Courts are beginning to recognize that the record companies crusade against filesharers is stepping on the privacy and due process rights of those accused," noted Cindy Cohn, EFF's Legal Director. "These decisions are simply requiring the record companies to follow the rules that everyone else has to follow when bringing litigation."

This decision adds to the difficulties faced by the record companies in pursusing filesharers. Yesterday a court in Canada rejected a similar request on several grounds, including that simply making available files on a filesharing network did not violate Canadian copyright laws and that the privacy of Internet users outweighed the strength of the record companies' case.

The European Parliament today voted to adopt an overbroad Directive on
Intellectual Property Enforcement that gives rightsholders powerful new
enforcement tools to use against intellectual property infringers. EFF
opposed the proposed Directive because it did not distinguish between
unintentional, non-commercial infringement by consumers and for-profit
criminal counterfeiting enterprises. "Under this Directive, a person who
unwittingly infringes copyright - even if it has no effect on the market -
could potentially have her assets seized, bank accounts frozen, and home
invaded," said EFF staff attorney Gwen Hinze.

EFF and a coalition of consumer groups strongly supported a set of
amendments to the proposed Directive tabled by Italian MEP On. Marco
Cappato, which would have limited the Directive's application to
intentional, commercial-scale infringement. Unfortunately, those
amendments were rejected in a 330 -151 member vote with 39 abstentions.
The Directive now moves to the Council of Ministers, which is likely to
endorse it on March 11, 2004. EU Member States will then have 2 years to
implement the new enforcement provisions in their national law.

Washington, D.C. - The Electronic Frontier Foundation (EFF) joined five library associations, Public Knowledge, the Consumer Federation of America, and the Consumers Union in suing the Federal Communications Commission (FCC) last week to block overbroad regulation of next-generation televisions and related devices.

"The FCC's digital broadcast television mandate is a step in the wrong direction because it would make digital television cost more and do less, undermining innovation, fair use, and competition," said EFF Senior Intellectual Property Attorney Fred von Lohmann, "The FCC overstepped its bounds, unduly restricting consumers and manufacturers when it issued its broadcast flag ruling."

The Federal Communications Commission (FCC) ruled on November 4, 2003, that consumer devices capable of receiving broadcast digital television (DTV) signals must implement content control technologies demanded by the entertainment industry to restrict consumer uses of digital television. Left unchallenged, the "broadcast flag" mandate would go into effect by July 1, 2005.

The lawsuit, called ALA v. FCC, was filed in the Court of Appeals in Washington, D.C., and charges that the FCC exceeded its jurisdiction, acted in an arbitrary and capricious manner, and failed to point to substantial evidence in adopting a broadcast flag mandate.

The FCC has asked the court to put the lawsuit on hold, pending the FCC's decision on petitions to reconsider the broadcast flag mandate, although all of the petitions address unrelated matters. The coalition of organizations opposed in court the FCC's attempt to postpone the lawsuit.

Here is a brief update on some of the cases in which
Public Citizen, Electronic Frontier Foundation, and the
American Civil Liberties Union and its local affiliates
have filed amicus briefs arguing that persons accused of
file sharing should be accorded minimal due process rights
before subpoenas are authorized to identify them. We have
just received rulings in two of the cases, one which
accepts our argument that the record companies should have
to file separate lawsuits against the individual
filesharers rather than lump them all into a single case
as they have done, and the other which found our arguments
helpful, but premature.

In the case filed in Philadelphia against 203 Doe defendants
whose Internet Service Provider is Comcast (BMG Music v Does
1-203), Judge Clarence Newcomer agreed with at least part of
the legal arguments we raised. He agreed that it was
improper to join all 203 defendants in a single lawsuit, and
ordered the music companies to file separate complaints
against each of the Doe defendants, paying a full filing fee
for each case, for a total of about $30,000, and making
individualized allegations against each defendant. Judge
Newcomer retained the case against Doe #1, one of the three
defendants about whom the music companies had provided
detailed evidence (more than a hundred pages, each listing
many songs made available for download), and authorized the
issuance of a subpoena for that individual's identity only.

Although Judge Newcomer left it to the discretion of each
judge to which the 202 new complaints would be assigned to
decide how to handle discovery, it would seem that in each
case, the plaintiffs will need an affidavit making the
proper showing about that individual defendant. Defendants
will presumably need to decide, in each case, whether they
can allege that filing in Philadelphia is appropriate.

In the case filed in Atlanta against 252 Doe defendants
whose Internet Service Provider is Cox Communications,
(Motown Record Co. v. Does 1-252), Judge Willis Hunt
authorized a subpoena, and required that Cox be allowed a
full twenty five days before compliance with the subpoena,
so that the subscribers could have extra time to object to
identification if they so desired. However, the Court
declined to consider the constitutional issue that amici
raised on the grounds that they were premature and could be
raised by the Defendants (and amici at that time) once the
Defendants have been notified that their identities are
being sought.

The judges who are hearing Virgin Records v. Does 1-44
(filed in Atlanta seeking to subpoena the identity of
alleged filesharers whose ISP is Earthlink), and BMI
Recordings v. Does 1-199 (filed in Washington, DC against
Doe defendants whose ISP is Verizon), are still considering
the issues presented by the motions and by amici.

EFF encourages the public to speak out for fair use rights by participating in the week-long campaign led by 321 Studios, makers of the popular DVD backup software recently enjoined by a California district court. "The public's rights to fair use of copyrighted works should not disappear in the face of technological restrictions," said EFF staff attorney Wendy Seltzer. "To bring back copyright's balance, we encourage individuals to write to Congress and the entertainment industry about their expectations when purchasing movies and other media." For more on 321 Studios' "Protect Fair Use" campaign, visit their website, ProtectFairUse.org.

The California Court of Appeal Sixth Appellate District today overturned a 1999 injunction against Andrew Bunner that prohibited him from posting DeCSS DVD decryption computer code, because it found that the DVD-Copy Control Association did not present evidence that CSS was still a trade secret.

"We are thrilled that the Court of Appeal has recognized that the injunction restricting Mr. Bunner's freedom of speech is not justified," said Staff Attorney Gwen Hinze. "Today's Court ruling that there is no evidence that CSS was still a trade secret when Mr. Bunner posted DeCSS vindicates what we have long said; DeCSS has been available on thousands of websites around the world for many years."

San Francisco, CA - The Electronic Frontier Foundation (EFF)
today asked concerned Europeans to contact Members of the
European Parliament (MEPs) prior to a March 8 vote on a
controversial proposed directive on Intellectual Property
Enforcement. EFF is asking Europeans to seek an amendment
that would limit application of the directive to intentional
commercial infringements of intellectual property rights.

"EFF is urging its members to ask their MEPs to seek an
amendment to the proposed European Intellectual Property
Enforcement directive because it does not distinguish
large-scale commercial infringement and counterfeiting
enterprises from unintentional, non-commercial infringement
by individuals," said EFF Staff Attorney Gwen Hinze. "If the
European Parliament adopts this directive, a person who
unwittingly infringes copyright -- even if it has no effect
on the market -- could potentially have her assets seized,
bank accounts frozen, and home invaded."

An action alert available on the EFF website makes it
possible for Europeans to contact and voice their concerns
to key members of the European Parliament.